New rules for risqué business

Pleading ignorance about their own programming is an increasingly precarious strategy for fighting indecency complaints, if recent comments from the FCC's top cop are any indication.

"If the station can't refute information in the complaint, we'll assume the complainant got it right," FCC Enforcement Bureau chief David Solomon told a group of broadcasters last week.

Alarmed broadcasters attending the National Association of Broadcasters' annual state leadership conference in Washington felt that Solomon's warning suggested a change in policy and that the FCC is subtly pressuring radio and TV stations to keep tapes of their broadcasts.

Solomon's comments came only a week after the commission proposed new consumer-complaint procedures that could increase the number of informal complaints by parents and others concerned about increasingly racy and raunchy programming. The sheer volume of complaints and the FCC's obligation to tally them may serve as a lightning rod for criticism against the industry, even if most of the complained-about bits aren't deemed indecent.

Even without a widely promoted process for filing consumer complaints, most indecency investigations originate as informal inquiries from individuals.

Of roughly 280 complaints in 2001, the FCC issued seven notices of apparent liability for indecency violations. Commissioner Michael Copps, who is pressing the FCC to step up enforcement efforts, predicts that the new process will lead to a tremendous rise in the number of recorded complaints.

The latest FCC quarterly report lists fewer than 40 indecency complaints a month. But Copps said, "It's become a rare morning when I don't walk into my office and find 30 in one day." The FCC is actually getting "hundreds or thousands" of indecency complaints.

Virtually all indecency fines are levied against radio, but Copps said TV stations need scrutiny. He made headlines when he complained about ABC's Victoria's Secret fashion-show sweeps stunt last November.

Pinpointing what is indecent has always been tricky. Technically, indecent programming "describes or depicts" sexual or excretory organs or activities in a way that is "patently offensive by contemporary community standards," but what passes muster has been left to the commission to define through its actions. Under a 1995 court decision, broadcasters are forbidden from airing obscene programming at any time and from airing "indecent" content between 6 a.m. and 10 p.m.

But Solomon insisted that there has been no change in a longstanding FCC policy that leaves tape-archiving to licensees' discretion and denied any effort to tighten FCC indecency enforcement. "There's no requirement to keep tapes," he told the broadcasters. "People are looking for trends when they're not necessarily there."

In several cases over the years, he noted, the FCC has levied indecency fines against stations based solely on short but sufficiently descriptive accounts of broadcasts rather than tapes or full transcripts.

The most recent was a $14,000 fine upheld in January against Emmis station WKQX(FM) Chicago for a listener's complaint about morning-show segments featuring a porn star describing a fetish sex act and another in which women described oral-sex techniques, accompanied by a soundtrack of women moaning. The FCC accepted the complaint because it provided sufficient detail and wasn't refuted.

The NAB is reluctant to draw the ire of policymakers and citizens' groups by waging public battle over indecency enforcement. It wouldn't comment on the FCC's policies.

But media critics fighting to halt what they see as the industry's dive into the gutter say Solomon's statement and recent decisions offer hope that the FCC will begin taking the issue more seriously.

Broadcasters have been allowed to "violate the law with impunity," opined Morality in Media President Bob Peters, because the FCC generally has required complainants to provide tapes or transcripts to initiate an indecency investigation. He has lobbied the FCC for nearly two decades to make stations keep tapes. "If a listener's report about a possibly indecent program will be presumed correct," he said, "stations will have a difficult time rebutting without a tape."

It's not only the smut watchdogs who are taking shots at the programming on radio and TV.

Copps picked up the banner of indecency enforcement carried by his predecessor, Gloria Tristani and has urged broadcasters to keep tapes. Lawmakers are getting in on the act as well. In late January, Senate Appropriations Committee Chairman Robert Byrd (D-W.Va.) ordered the FCC to report on the "declining standards of broadcast television" and the impact on children. The FCC also must explain what it's doing about objectionable programming. His request follows a mandated FCC staff report last June on the possibility of resurrecting the NAB code of conduct and citing "the further erosion" of standards.

The delicate balancing act between carrying out statutory obligations to punish indecency and protecting free-speech rights puts the commissioners in a thorny spot. But recognizing that they can't stay silent on the issue, FCC Commissioner Kathleen Abernathy insisted last week that she "will not shy away" from the responsibility. But she would rather let market factors such as audience rating determine a program's fate. Consumers' "ability to change the channel has a far more immediate impact on broadcasters than government regulation," she told the Media Institute.

The FCC is considering funneling general complaints to the Consumer Information Bureau, which would tackle the inquiries in a manner now used to resolve disagreements between phone companies and customers. Under that process, the bureau first gives the parties 30 days to negotiate a resolution. If no agreement is reached, the FCC can launch a formal investigation.